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The Commonsense Rules of Discipline and Discharge

Date: November 7 2000

No employer action generates more litigation than the decision to discharge an employee. Discharges have become the source of expensive lawsuits, some of which can put a small company out of business. Even where discipline is clearly warranted, sloppy personnel practices can leave the decision open to challenge.

The Foundation for Discipline

The first step toward a solid program of discipline is the preparation and distribution of written work rules. These work rules should outline the boundaries of proper conduct for all employees. These rules of conduct can be contained in the employee handbook, posted on bulletin boards, or distributed separately to all employees. In addition, they should be redistributed to all employees once a year, whether or not they have been revised. Employees should either sign a receipt stating that they have received a copy of the work rules or a notation should be made in their personnel files that they have received a copy. Under no circumstances should an employer make up rules as he goes along.

The work rules themselves should contain a program of immediate and progressive discipline. Certain serious misconduct, such as theft, insubordination, and intoxication on the job, should call for immediate discipline up to and including discharge. Other minor offenses, such as absenteeism, lateness, and unsatisfactory work performance, should be subject to progressive discipline. That program of progressive discipline should provide for an oral warning, followed by a written warning, suspension, and discharge. Some employers may wish to dispense with the suspension phase, especially where absenteeism itself is the misconduct involved. In those cases, a final warning should be substituted in the progression of discipline.

Another important element in a solid disciplinary program is a comprehensive personnel filing system. At the very least, personnel files should contain the disciplinary record of each employee. Employees should be permitted to examine their personnel files at reasonable times.

A good disciplinary program also has a senior management official who is responsible for employment decisions. In large and medium companies, this position is normally filled by a full time personnel director. In smaller companies, this responsibility should be assigned to the chief executive officer. This individual should be responsible for reviewing all employment actions, especially discharge.

The last, and probably the most important element of a good disciplinary program is supervisor training. Supervisors - especially those who directly supervise rank and file employees -should be given regular instruction on good personnel practices, including discipline and discharge. Too often, a supervisor is selected because he was a good worker. As a result, he infrequently has the requisite skill and ability to perform the personnel functions that are central to his success.

A good supervisor program should include the following:

·         1. Instruction on the applicable state and federal employment laws.

  • 2. Lessons on how to create a positive working environment, especially where the company is nonunion.
  • 3. Instruction on how to evaluate employees.
  • 4. Discussion on how to communicate with employees.
  • 5. Detailed instruction on proper methods of discipline and discharge.
  • 6. Instruction on how and employment discrimination case is prepared for trial.

Item 6 gives a supervisor a taste of what an improperly prepared discipline case could entail in time, money, and aggravation.

The Decision to Discipline or Discharge

Discipline should never be imposed precipitously or out of anger. At most, an employee engaging in serious misconduct should be suspended indefinitely pending a full investigation. That investigation should be conducted by the company''s chief personnel officer. If discharge is warranted, the suspension should be converted to a termination.

The personnel officer should proceed in the investigation by first reviewing the employee''s personnel file. The employee''s length of service, past record, and prior evaluations could affect the decision. The next step is to interview all the management officials with knowledge of the circumstances leading to the discipline. Detailed notes of these interviews should be kept by the personnel officer for later use. If employee witnesses are involved, the personnel officer should take statements from the employees, which should be signed.

In some circumstances, the employee should be interviewed concerning the conduct, keeping in mind that he may have the right to have a union representative present. If he makes such a request, it must either be granted or the interview terminated.

All the necessary written documentation for discipline should be compiled during the investigation. The investigation should be conducted as though charges or discrimination or a lawsuit have already been filed. It is wrong to assume that this documentation can be compiled later.

Once an investigation of the underlying facts has been conducted, numerous questions should be considered by management officials. First, does the conduct violate a written rule? If it does, is immediate or progressive discipline appropriate? If a minor offense, has progressive discipline been followed?

Second, the company should determine whether employees have been similarly disciplined for such conduct in the past. If the investigation uncovers that exceptions have been made, the company should explore the circumstances surrounding the uneven enforcement of the rules. If an exception has been granted in the past, it may tie the hands of the company in future cases. That''s because minorities are permitted to prove discrimination by showing that a non-minority employee was treated differently in the past.

Third, the company should consider the employee''s length of service. If the employee is probationary, more severe discipline may be suitable. On the other hand, a long-term employee may be entitled to less severe discipline.

Fourth, the company should ascertain whether the employee had notice of the rule violated. If not, discipline may be inappropriate. Of course, certain misconduct is clearly prohibited whether of not it is clearly set forth in work rules. Stealing is one notable example.

Fifth, the company should determine whether the employee in question has engaged in certain "protected" activity in the recent past. For example, has the employee recently been engaged in union activity? has the employee recently filed a charge of discrimination? If the answer is "yes," the decision to discipline or discharge may come under even greater scrutiny by a court or government agency.

Once the investigation is completed and the elements considered, the decision to discipline or discharge can be made. The discharge decision should nevertheless be reviewed by the chief operating officer, who has ultimate authority at the company. If he or she concurs in the decision, the decision should be communicated to the employee.

Implementing Discipline

A fully-supported disciplinary decision can be weakened by poor implementation. Too often, employers confronted with a distasteful disciplinary action will try to ease their discomfort by softening the words used to tell the employee. This only helps the employee prove at a later time that he or she was the victim of discrimination. Consider the following example.

EXAMPLE: An employer''s work performance has steadily declined. The employee has received counselling from his supervisor, though no written record was made of these sessions. Finally, the company decides to discharge the employee, but calls the termination a "layoff" to allow the employee to collect unemployment insurance with no difficulty and to make the separation less hostile. The employee files charges of discrimination.

In this example, the employer''s lack of documentary evidence of poor work performance is the least of his problems. If the company now maintains that the employee was discharged for poor work performance, not laid off, the "new" reason appears pretextual. A court or jury might conclude that the "lie" told at the separation conference was designed to cover up the real reason: unlawful discrimination. Moreover, if the company decides to stick with the layoff story, which could be perjury, it may have to explain why the employee was not recalled, why new employees were hired, why less senior employees were not laid off first, etc.

Discipline, especially discharge, should be communicated to the employee in a conference with the personnel officer. The employee should be told the reason why he is being disciplined in a candid, complete manner. If disciplinary forms are used, fill one out, tracking your oral presentation to the employee. If the employee is being discharged for theft, tell him. If he is being discharged for unsatisfactory work performance, set forth in detail why his performance was substandard. Do not under any circumstances call the discharge a layoff, furlough, or anything else except what it is. And do not indicate to the employee that the decision was "hard" or that you are not absolutely convinced that the decision is proper.

If an employee is discharged, do not permit him to "finish the day." For this reason, the employee should be advised of the decision at the end of the day, if practical. Finally, do not embellish the reasons given for the final decision. For example, employers find it difficult to refrain from referring to incidents several years old. This may make it appear that the decision to discipline or discharge was made with some reservations. If the misconduct was serious enough to warrant discharge, there is no need to give further justification.

Established procedures for disciple and discharge are necessary for every company, small or large. Employees are more inclined to sue these days than take the company''s decision at face value. The fundamentals set forth above should help most employers minimize their legal troubles.

Kollman & Sheehan, P.A.Kollman & Sheehan, P.A. © Copyright 2000


Frank L. Kollman, is a partner in the law firm of Kollman & Sheehan, P.A. and he is also a partner and moderator of, LLC., providing free forums for the professional HR Manager.